Citation NR: 9605586
Decision Date: 03/05/96 Archive Date: 03/16/96
DOCKET NO. 94- 01 223 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Phoenix, Arizona
THE ISSUES
1. Entitlement to service connection for an acquired
psychiatric disorder, including post-traumatic stress
disorder (PTSD).
2. Entitlement to service connection for hyperthyroidism.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
G. Wm. Thompson, Counsel
INTRODUCTION
The appellant had active military service from September 20,
1990, to May 25, 1991, with 5 months and 24 days of foreign
service. Approximately 8 years of inactive duty is reported
on her DD Form 214, and she reports duty in the National
Guard/Army Reserves in the 1980’s and 1990’s. Service
records do not show any combat awards or decorations.
This appeal arises from rating actions in April, July and
September 1992, and May 1993 that denied entitlement to
service connection for dysthymia, panic attacks, nightmares,
PTSD, and hyperthyroidism. In hearing testimony in December
1992, Transcript, page 2, the appellant indicated that the
panic attacks were part and parcel of the PTSD, and not a
separate issue. The Board notes that night mares are a
symptom and not a psychiatric disorder. The Board has
therefore characterized the issues on appeal as shown on the
preceding page as a more accurate reflection the issue on
appeal.
The issue of entitlement to service connection for
hyperthyroidism is deferred, pending the remand contained
herein.
REMAND
Preliminary review of the record indicates there are two
areas requiring further development by the RO. The first of
these involves sorting out the diagnostic picture in this
case. The claims file contains a host of references to the
presence of psychiatric symptoms and apparently diagnosed
disorder(s) pre-dating the period of service from September
1990 to May 1991. For example, during hospitalization at a
VA medical facility in August 1991, the appellant reported in
patient treatment for amphetamine use at age 16, a long
history of alcohol and drug abuse, and a history of
psychiatric treatment from age 15 to age 29, including
treatment at Austin State Hospital in 1975. From 1991 to the
present, the record contains an array of diagnoses including
of dysthymic disorder with panic attacks, PTSD with panic
attacks, PTSD, history of PTSD, panic attacks, drug and
alcohol abuse, question of a psychotic disorder, and
borderline personality disorder. The relationship, if any,
between these disorders and service is by no means clear.
The Board believes that records of treatment prior to
September 1990 would be relevant to clarifying the
psychiatric diagnoses in this case, as would a comprehensive
review of the record and examination.
The second major problem area in this case concerns matters
of fact finding. While the Board has not predetermined the
outcome of this case, it is obvious from even a preliminary
review of the record that the appellant’s accounts have
conspicuous inconsistencies. It is further a matter of
record that an attempt to assist in clarifying the diagnostic
picture in this case by psychological testing was frustrated
by the appellant who provided invalid data. Finally, the
essential requirement to support a diagnosis of PTSD is one
or more “stressors.” The United States Court of Veterans
Appeals (Court) has made it clear that the question of
whether or not an event claimed as an alleged stressor
occurred is an adjudicative matter, not a medical question.
Zarycki v. Brown, 6 Vet.App. 91 (1993). The Court has
further held that the question of whether the verified event
claim as a stressor was of a quality such as to produce PTSD
is a matter requiring medical expertise. West (Carleton) v.
Brown, 7 Vet.App. 70 (1994). Thus, the claimant can not
prevail on her claim simply by asserting that she believes
certain events alleged to have occurred in service
constituted “stressors” and that they produced PTSD.
In light of the above, this case is remanded for actions as
follows:
1. The RO should confirm the period(s) of
Army Reserve and/or National Guard
service for the appellant, and ensure
that all medical records associated
therewith have been obtained.
2. The RO should contact the appellant
and request that she proved the names and
address of all physicians, medical
facilities, that have provided
psychiatric treatment for her from age 14
to the present. Thereafter, with the
help of the appellant, the RO should
attempt to secure records of all
psychiatric treatment for the appellant.
Particular attention should be directed
to records of treatment of the appellant
from age 15 to 29, the records from
Austin State Hospital, and records from
R. Thompson, M.D., Phoenix, Arizona, who,
according to the appellant, diagnosed her
with depression in 1988. The appellant
is advised that her cooperation in this
matter is essential, and that a lack of
cooperation potentially can have adverse
consequences.
3. The RO should again request that the
appellant provide a specific statement as
to those events that she alleges she
experienced in service that she believes
should be considered as potential
“stressors” for purposes of a claim for
service connection for PTSD. The
appellant is advised that she must be as
specific as possible as to dates,
locations and her unit of assignment, as
well as the name, rank and unit of
assignment of other individuals involved
in such events. Without such specific
information verification may not be
possible.
4. The RO should then take necessary
action to secure verification of the
alleged event or events from the
appropriate service department authority.
5. Following 3) and 4), the RO should
enter an adjudicative determination as to
whether one or more of the alleged events
are verified. The RO should specifically
enter a determination as to whether the
appellant “engaged in combat with the
enemy,” and if so, whether her accounts
of alleged events claimed as a “stressor”
or “stressor” are satisfactory. If the
RO determines that the claimant did not
“engage in combat with the enemy,” the RO
should base its determination upon
whether the service department has
provided verification of the alleged
events or events. Absent such
verification, lay testimony by itself can
not establish the existence of an event
claimed as a stressor. Zarycki, 6
Vet.App. at 98. If the RO determines
that one or more such events are
verified, the RO should specifically
enter a determination as to the character
of this event or these events.
6. Following the above, the RO should
arrange for the appellant to undergo
complete psychological testing by the VA.
A complete personality profile should be
included.
7. Thereafter, arrangements should be
made for the appellant to undergo a
special psychiatric examination by a
panel of VA psychiatrists who have not
previously examined her to ascertain the
nature and severity of all psychiatric
pathology. A copy of this remand and the
claims folder should be made available
for the examiners for review in
conjunction with the examination. With
respect to the claim for service
connection for PTSD, it is essential that
if and only if the RO makes an
administrative determination that one or
more events claimed by the appellant as
potential stressors occurred, that this
event(s) be described in detail to the
examiners. (If, of course, the RO does
not concede the existence of an event
alleged as a “stressor” in service, the
matter of whether the appellant has PTSD
due to service would be moot.) Following
the examination and a review of the
record, the examiners are requested to
address the following questions:
(a) What is the correct diagnostic
classification of all psychiatric
pathology now present?
(b) If any of the disorder pre-existed
service, the examiners should so indicate
and identify the evidence supporting such
a conclusion. The examiners should
further indicate whether any such
disorder which pre-existed service
increased in severity beyond natural
progression during service, based on all
the evidence of record pertaining to the
disorder, before, during and after
service.
(c) If, and only if, the RO determines
that one or more events alleged by the
appellant to have constituted a
“stressor” for purposes of a claim for
service connection for PTSD are verified,
the examiners are respectfully requested
to provide an opinion as to whether such
an event or events constituted a valid
“stressor” for purposes of establishing
the presence of PTSD due to service, and
if so, whether the remainder of the
diagnostic criteria for this disorder are
met.
8. Following completion of the foregoing,
the RO must review the claims folder and
ensure that all of the foregoing
development actions have been conducted
and completed in full. If any
development is incomplete, including if
the requested examination does not
include all test reports, special studies
or opinions requested, appropriate
corrective action is to be implemented.
Thereafter, the case should be reviewed. If the benefit
sought remains denied, the appellant and her representative
should be provided with a supplement statement of the case
and be given opportunity to respond. The case should then be
returned to the Board for further appellate consideration.
By this action, the Board intimates no opinion, legal or
factual, as to the ultimate disposition warranted.
RICHARD B. FRANK
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1994).
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